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Some thoughts on the same-sex marriage decisions and the Church’s response

The Church responded to today’s Supreme Court decisions on same-sex marriage this way:

By ruling that supporters of Proposition 8 lacked standing to bring this case to court, the Supreme Court has highlighted troubling questions about how our democratic and judicial system operates. Many Californians will wonder if there is something fundamentally wrong when their government will not defend or protect a popular vote that reflects the views of a majority of their citizens.

I would like to do a thought exercise on this statement. I am willing to be convinced that I am wrong, so if you have a polite disagreement with me, bring it on.

Let’s say that the people of California decided via referendum to confiscate all guns. Let’s say it was a close vote 52-48 percent. And let’s say by some miracle there is a governor and an attorney general in California who read the 2nd Amendment and say: “we cannot enforce this. This is unconstitutional.” And they refuse to enforce the confiscation. And then a federal court overturns the referendum and the Supreme Court agrees with the federal court.

Personally, I would support the governor and attorney general who refuse to enforce an unconstitutional law and I would support the federal judges who overturn said law.

So, it seems to me that focusing on the process itself is not really the issue. We are a republic, not a democracy, and this means that we do not determine something is right because 52 percent of the people support it. The purpose of government is to protect the natural rights of life, liberty and property. These natural rights are the foundation of the Constitution and our entire system of government. The Constitution has a series of checks and balances on the democratic process because pure democracy leads to mob rule. Under a pure democracy, 51 percent of the people can decide that all property should be confiscated from Mormons, and it will happen. Under a republic, there are systems in place, competing governmental forces, that will prevent mob rule.

So, I don’t really have a problem with the process itself. Now having said that, I support the Church’s position on Prop. 8, but perhaps for entirely different reasons. I admit that, based on past discussions on this issue, my position will not brilliantly convince all readers. I predict a lot of disagreement with my position, but it works for me, so here goes.

I believe in a limited government, a very, very small federal government with more power for state, county and city governments. I do not believe the federal government should be involved in marriage at all. However, state and locals governments should be involved in marriage. A marriage involves a man and a woman making a lifetime commitment to create a home and hopefully raise children. Local governments should promote the institution of marriage for the good of society.

I would note that the federal Constitution does not address the issue of marriage at all and that family law has always been the province of state governments. And so it should be.

There always have been people who are not attracted to the opposite sex. These people can and should be allowed to live with whomever they choose, make lifetime commitments, make consensual contracts for distributing their money as they please, visit each other in the hospital, etc. In fact, I would say that it is government’s role to make sure that the natural rights of these people are protected. But this relationship is different than a marriage. I am not saying it is better or worse, it is simply different. I believe words have meanings that cannot be changed by fads or whims.

In short, my position is that there is no such thing as a “same-sex marriage.” There is such a thing as a same-sex commitment. I believe two people of the same sex can love each other deeply, care about each other and live with each other for life. But it is a different thing than a “marriage.” (Again, not better or worse, just different).

It seems to me the opposition to Prop 8 was based on an approach to “equality” that completely misses the point that marriage is a different thing than a “lifetime commitment” of two people of the same sex. Prop 8 should have been upheld for the very reason that you cannot pretend something is what it is not.

I would like to quote the ever-brilliant LDS Philosopher on this issue:

But applying it to this case makes a presumption that gay marriage is a right. I think, however, this fundamentally misconstrues the entire debate. The question is not wether to extend an existing right to a broader group of people, but whether to change the definition of a term.

There are two potential definitions of marriage in question here: a conjugal definition of marriage, and a companionate definition of marriage. From the conjugal perspective, marriage is a permanent union between a man and a woman who unite their families with the ostensible purpose of having children, and who arrange their lives legally, civilly, and socially with forthcoming generations in mind, and who enter into a legal obligation to remain loyal to that arrangement to the end of their lives. From a companionate perspective, marriage is civil arrangement between two lovers for the purposes of sharing finances, assets, etc. (generally with the interests of the individual couple in mind, irrespective of forthcoming generations), to be dissolved when either party loses interest in the arrangement without legal consequence.

The conjugal definition is the definition of marriage that has held in centuries past. This is why, for example, same-sex lovers in ancient Greece never really consider marriage something necessary for their union — marriage was about forthcoming generations, not just a ratification of a companionship. The state only has an interest in licensing and ratifying companionate relationships to the extent that those relationships have the possibility of generating children. The public interest generally ends when children are a physical impossibility. Gay “marriage” makes no sense to me as marriage. Basically, it amounts to the government saying, “Oh, you two are in a committed relationship now. Here’s a certificate requiring others to acknowledge your relationship.” That is simply not a marriage.

Now, societal opinion has been shifting towards the companionate view of marriage. It started long ago, with the implementation of no-fault divorce; we now no longer see marriage as a binding legal obligation, but instead as an economic contract either party can dissolve at will. This placed marriage, as defined by the government, somewhere in between the conjugal and companionate view. The same-sex marriage movement is a furtherance of the companionate view. The reason I oppose same-sex marriage is that it fossilizes (as in, makes articulate and permanent) the companionate view of marriage over the conjugal view of marriage. Marriage will cease to be what it has been and become something else entirely.

In conclusion, it’s not a matter of rights. It’s a matter of definition. In this case, the courts would not be protecting the rights of the minority from the oppression of the majority, but instead making articulate and encoding into law an ongoing redefinition of the very concept of marriage itself. And that’s something different entirely.

But I don’t have a problem with the process itself, which seems to me in line with what should happen in a republican government.

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About Geoff B.

Geoff B graduated from Stanford University (class of 1985) and worked in journalism for several years until about 1992, when he took up his second career in telecommunications sales. He has held many callings in the Church, but his favorite calling is father and husband. Geoff is active in martial arts and loves hiking and skiing. Geoff has five children and lives in Colorado.

Great post Geoff. This reminds me of something quite related. As a teenager I thought the ACLU was a whinny group of lawyers who can’t handle being on the wrong side of the majority position. One day I found myself in the minority on something (I can’t remember what anymore), and the ACLU articulated exactly what bothered me better than I could. It was a humbling experience.

I’m still a little uneasy about the power given to representatives to ignore the wishes of their constituency, but the Supreme Court has rules it has to follow, and I think they made the right decision based on what I know about those rules. I think they picked the ruling that would make the least amount of people happy, but would nevertheless satisfy the most on every side, even if it is a bittersweet satisfaction for nearly everyone.

I wonder what the Lord’s response will be to this? The 29th Chapter in the Book of Mosiah says that when the wicked are a majority, the destruction of the nation is imminent when they are ripe. Apparently we are not ripe in wickedness yet because we are still here. If things do not turn around, I wonder how ripe the Lord will allow us to become before the promised destruction takes place? I wish I could see into the future.

I learned something from your post. Henceforth, I am not going to speak of gay marriage. Rather I am going to refer to it as counterfeit marriage. Nothing the government can do will change the definition of a word. If it is gay, it is not marriage regardless of what laws and rituals are involved.

Ironically, at least in my mind, a statutory ‘marriage’ is not a true Marriage at all, but instead is a bastardization of the idea of marriage to the same level as some people believe gay ‘marriage’ to be. Why do I believe this? Because, in my mind, a true marriage is a covenant between the two spouses and God and a statutory marriage is actually a legal contract between the two spouses and the State where the State assumes the superior party of interest over the marriage and its fruits (children), and leaves God out of it entirely, except, perhaps, in the mind of the two spouses.

This last is legal reality and not my opinion. When you enter a statutory marriage, your children do NOT truly belong to you legally. You are, instead given stewardship over the State’s children until such time as the State disapproves of the way you are raising them. In a very real sense, the State has taken the place of God in the relationship.

I really don’t understand your position on this or why you think its OK that the argument that a law is constitutional shouldn’t be heard in court.
Perhaps you’re confused about what the ruling says, so I’ll summarize.
California voters pass a law by referendum. Some people sue, claiming that the law infringes their rights. The governor of California refuses to defend the law. Various voters and other supporters of the law try to intervene in the court proceeding to make the case that the law doesn’t infringe constitutional rights. On appeal, the Ninth Circuit holds that it doesn’t even have to consider the argument that the law is constitutional because the voters and other supporters aren’t allowed to try to defend the law. The Supreme Court upholds the Ninth Circuit. Result: the law is held unconstitutional, *but the argument that it was constitutional was not even heard.*

You are defending a system where advocacy groups bring suit in a hand-picked jurisdiction to get a favorable judge, where the nominal state defendant (who favors the advocacy group’s position but can’t achieve it by democratic means) then goes along with the advocacy group, and a decision is issued reaching the result the advocacy group and the nominal state defendant favor. This isn’t a democratic process, it isn’t a legitimate process, it isn’t a republican process, and it isn’t even a process that protects rights.

I expect this comment to be deleted, in which case I’ll repost it at the JG.

“I do not believe the federal government should be involved in marriage at all. However, state and locals governments should be involved in marriage. A marriage involves a man and a woman making a lifetime commitment to create a home and hopefully raise children. Local governments should promote the institution of marriage for the good of society.”

The federal/state/local balance of power issue is a fairly common one in more conservative and libertarian circles, and honestly is not one I feel I’ve heard articulated or explained very well. If it’s not too much a tangent, why do you believe states and local areas promoting marriage as a public interest is different than the federal government? Or, speaking more broadly, what is it about state and local governments that make them any better at effective at achieving the end of small government? Speaking personally, most of my experiences with government have been at the local and state level, and they tend to be frustrating bureaucracies just as I’m sure the federal government can be. Having hundreds of competing government localities further empowered just increases the potential complexity! Plus, looking back at US history, I’d argue that on the aggregate states haven’t had any better a record at protecting rights than the federal government, and in some instances have been markedly worse. So it seems to me that that if small government is an end in its own right then a broader national government with smaller state and local governments is the best way to achieve that. That might end up less representative, of course, but I’m just talking about small government as an end in itself. Anyway, I obviously approach this from a different angle and we’re likely to disagree, but I’m genuinely curious what you think.

This is a very dangerous game we are playing. While out leaders promote global warming alarms and amnesty for illegal aliens, the people are engaging in one of the most dramatic unproven social experiments of all time. No other civilization in history has survived through the normalization and acceptance of such widespread depravity. Are we on the road to self-destruction? Who can say? There is no scientific study, no data on long-term repercussions. There is no control group. We are taking a risky step into the darkness. Who knows what we will encounter?

Adam G, you make a good argument but apparently still don’t know the difference between polite disagreement (which your comment above is) and ad hominem attack, which you sometimes engage in. I have no problem with polite disagreement. In fact, as in this case, I often learn something from polite disagreement. I have a problem with a comment that is simply an insult. So, if you want to disagree politely, have at it. If you just want to insult somebody, please keep it to yourself (at least when commenting on my posts or comments).

Regarding your point, I think you make a valid argument. You have given me something to think about. Thank you.

James, the Constitution was written with the idea that most laws and citizen interaction would take place on the state or local level. Family law, for example, is explicitly a state issue and varies from state to state. This is by design. People have different ideas about divorce and child support in different states. So, there is a precedent for treating the issues of family and marriage on a state level rather than a federal level. It is possible (and likely) that the people of Alabama will have different ideas about family law than the people of Vermont, and the Constitution deliberately encourages this. Regarding the correct role of government, I feel the federal government should be tiny, probably one-tenth of its current size. Some states (California, NY, Mass) will compensate with larger state governments, other states (Wyoming, Idaho, Utah) will not. People will be able to choose the model they like best. Freedom of choice is a very, very good thing.

Geoff. you bring up a great point about what should really be our focus. Sadly, it seems to me that most LDS church members have bought into the popular understanding of marriage as an agreement between lovers, and not as a covenantal vehicle for creating, perpetuating, and protecting families. I believe this can explain most of the dilemmas and crises faced by our church members today.

Adam also brings up a very valid point. The issue is not with executive branches of government intervening to protect the constitution, but with their newly-given and privileged position of de-facto veto power over any other branch or group’s pleas.

James wrote:
The federal/state/local balance of power issue is a fairly common one in more conservative and libertarian circles, and honestly is not one I feel I’ve heard articulated or explained very well. If it’s not too much a tangent, why do you believe states and local areas promoting marriage as a public interest is different than the federal government? Or, speaking more broadly, what is it about state and local governments that make them any better at effective at achieving the end of small government?
—

The more local a government, the easier it is for an individual to influence the government. One man and a sufficient number of his friends can get rid of corrupt city councilmen, mayors, chiefs of police, etc. And on a local level those who have a grievance may more readily understand the situation. The same problem on a federal level becomes almost unsolvable because of the size of the group that is needed and the amounts of money required to effect positive change. For this reason, the national government should only do those things that cannot be done on a more local level.

Also, don’t forget the Tenth Amendment in the Bill of Rights. Any power not specifically granted the national government is reserved to the states and to the people. Of course, that amendment was trashed long ago. That is a big part of why we have lost most of the freedom we once had.

Geoff, I’ve been without internet for the past couple of hours, and during that time wrote a full article based on my comment on a previous post. The first thing I did when I got internet back was to schedule it for publication at M*. Then I find my full comment reproduced in your post. Thanks for the attention! That said, I hope you are not offended by the fact that I have posted the same thoughts as a post of its own.

Geoff, with Adam (and, apparently, the LDS Church), I am deeply concerned about the unprecedented power this hands to the governor of a state. Essentially, even constitutionally sound legislation can fall through the cracks if a governor simply dislikes it, and so allows it to be challenged undefended in court.

So even if the measure was a violation of rights, I would hope that it gets defended in court. I would also hope that judges strike it down — but I would at least hope it gets defended. For the exact same reason that I hope accused terrorists have their day in court and a proper defense by competent lawyers.

To me, your position is this: “A governor tasked with defending a law in court from legal challenges can, if he disagrees with the law and finds it repugnant to human rights, simply refuse to defend it.”

I must ask, how is it different from this: “A governor tasked with defending the due process of accused criminals can, if he finds the actions of the criminal repugnant to the rights of others, refuse to assign the criminal a competent lawyer.”

How is this different from refusing accused terrorists lawyers in court? Sure, the terrorists may be a repugnant human being, and may deserve sentencing, but our government still has the obligation to grant him legal counsel. In the same way, a law passed through a legitimate legislative body may end up being unconstitutional, but our government still has the obligation to grant legal counsel to defend the law in court.

To clarify, I get what you are saying: those tasked with enforcing the law should be granted the lee-way to conscientiously dissent in the course of their duties. I, too, would respect a police officer who respectfully dissents to carry out a law that he finds repugnant to his duties as an officer.

However, we are talking about a court system where both the accused and the accuser deserve legal recourse. And if an injured party accuses a legislative body of violating his rights (which was the case in the Proposition 8 case), the legislative body (in this case, the people of California), deserve proper legal counsel just as much as anyone who has been accused. The governor, who is tasked with the job of provided that legal counsel on behalf of the people of California, failed to do that.

I do not see the difference between that and refusing to give a terrorist a lawyer because you find the actions of a terrorist repugnant.

I appreciate the responses. John, apparently your experiences with local governments have been more positive than mine, because I’ve dealt with enough local bureaucracy and mismanaged governance that I’m fairly sour on the idea that being closer to the situation necessarily makes for more effective governance. Not that the federal government is necessarily better, just no worse, so from my perspective how you interpret the 10th amendment only determines the level of government that’s going to pester you most. I am all for, if nothing else, a massive simplification of government; I like Stephen Teles’s writing about the American “kludgeocracy” that does everything in about the least efficient way possible.

Geoff, I’m not so comfortable with such broad statements about why the Constitution was written and what it intended given the plurality of opinions about its significance and meaning from the day its ink dried, though I’d agree that most people in a far less connected 18th century world would have been prone to think locally rather than nationally, to varying degrees. Regardless, I suppose I just have less confidence that, given the interconnectedness of today’s world, a system that empowered states and localities would lead to anything but more bureaucratic and jurisdictional complexity; I’m still not convinced that a top-down approach isn’t more conducive to less government overall. But since neither our visions is likely to happen any time soon the real world may not have a chance to prove either of us wrong and we’ll be free to debate forever 😛

Geoff,
I was lost from the beginning when you compared a “right to marriage” and a “right to keep and bear arms”. One is not written in the constitution, and one is. I had trouble with the simile from the get-go.

Interesting read though. Now I’m off to read the apostates at BCC and T&S lauding the decision and bemoaning the churches response…

Geoff,
It is not for governors or attorney generals to determine whether something is consitutional or not. That is what we have jusges for. But you are using a bit of illogic with your “consficate all guns” scenario. If the attorney general should think that a law is unconstitutional, a test case can easily be made, but the scenario that you presented is something that has already been tested in other cases already, such as in assault rifle bans, etc.
What you need is something which is not so obvious, such as a law which declares that only people who are enrolled in a militia will be able to own and carry weapons. This would align with the wording of the constitution very well, and attempt to narrow the meaning of the right to bear arms.
At this point in time, the law has been passed. It represents the will of the people of that state. (We are a democracy, a representative democracy.) Now, our elected representatives and officers have a duty to follow the will of the people.
Of course there are limits. If a law were to be passed bringing back slavery in a state, that would be obviously unconstitutional. But hwen the issue is murky, such as the law I proposed, then the governor and the attorney general have the duty to follow the will of the people. If they do not and anger the people enough, they will be replaced by people who will.
The attorney general could very easily prosecute a test case to verify the constitutionality of the new law.
Proposition 8 is a bit different. It just makes a state constitutional definition. There is nothing clearly Federally unconstitutional about it. It is the duty of the governor and attorney general to defend their constitution. That is what did not happen. The governor of California and the attorney general abdicated their responsibility to the people anf their constitution.
If that had been done, the results may have been the same, or they may have been different, but the issue would have been decided upon the merits of the case, rather than a decision that is not binding on any other state.
The issue will come up again when gays in another state which has such a constitutional amendment sue to have it overturned. This needs to be settled by the Supreme Court, once and for all.
I am not advocationg either side of the argument here, just that the case needs to be decided on its merits.
Glenn

Sadly, the Constitution no longer hangs by a thread, as our federal government’s three branches have shredded it to pieces. States and local government have little power of their own anymore. The voice of the people is ignored by both local and federal executive branches. The power grab is almost complete. That the IRS and NSA problems will not go away, because our government will not truly investigate the issues at hand, shows that those in power are seeking to take full power of the system. With laws being ignored and not enforced, executive orders skirting Congress and the Constitution, a Senate that has not passed a budget in years, Giant debt, major corruption with no council to investigate it fully, etc., we are no longer a Republic OR a Democracy. We have moved into the realm of Plutarchy, where the voice of the One or One Group, has all say in the matter.
The Book of Mormon states that when the voice of the people choose evil, it is ripe for destruction. Guess who elected the tyrants that now run many of our states and our federal government? We did. Whether we voted Democrat (Obama) or Republican (GWBush), we voted for people who supported the Patriot Act (NSA’s power), for people who support direct taxation of the people (IRS), for people who chose to develop a huge war machine with made up decade long wars, and for people who chose to run our debt into the stratosphere. Could it possibly be true that we are no more freedom lovers than Russia or China?

Personally, I’m pleased we’ve reached this point in history. To see the collapse of the world’s greatest power is not a common thing to see. But it will be a better thing than to see such corruption continue. Better, we get to see it replaced with Zion and her stakes, a refuge from the storms to come, based on liberty and righteousness.

As for Geoff’s comments, I agree with LDSP and others who think that all parties have a Constitutional right to be represented in court. As a representative of the people, the governor and/or president should follow the laws enacted by the people or the legislature. There is a process for vetoing bills, or replacing them later with another vote. But while a law is part of the law, we need to live by the rule of law and defend it.

At a core level isn’t the basic problem with the “process” that the supporters of Prop 8 put it forward as a referendum instead of a Constitutional Amendment? The first attempts to accomplish the same thing had been ruled unconstitutional by the California Supreme Court, the referendum was an attempt to reverse a State Constitutional ruling with a law instead of an amendment. The U.S. Supreme Court Ruling (as I understand it – which could well be wrong as I’m an economist instead of an attorney) basically says Prop 8 is incompatible with California’s current Constitution.

Of course had Prop 8 been put forward as an Amendment it would have failed miserably (unless its proponents were dramatically more successful in both the California Legislature and the election itself). The obvious remedy (if the Prop 8 supporters really think public opinion is on their side) is to propose (and try to pass) an amendment to the California Constitution.

On the idea put forth in the original post (that gay marriage simply isn’t marriage) I think the play on words is not very helpful. Legally married people can adopt. As far back as we have an kind of records at all people in various civilizations have adopted children. Sometimes this was done out of charitable motives, sometimes just as a pragmatic response to a difficult situation, other times out of conquest, and other times for slavery or other depraved purposes. So the conjugal nature of marriage is not essential to acquire children nor to be concerned about their welfare – and in fact as history, and any given major newspaper today, shows it may actually harm children..

The state ought to be able to define the legal obligations associated with “marriage/cohabitation” (however it/they is/are legally defined), and churches, or mutual association societies, ought to be able to define what marriage means to their members. The simplest way to do this is simply to take the state out of the marriage equation entirely. Let states define various types of legal relationships which couples can choose among. Those will be the only predefined legal options. Then let private organizations define what other aspects of couple relationships they want to add on. Marriage would be reserved for something other than the state (which we believe in our case would be God) to define.

This of course completely ignores that for much of human history (certainly scriptural history) marriage generally was not restricted to one man and one women. Various arrangements from rape as a proposal device, to conquest, to ownership of females, forced widow marriage within the family, to concubines, and harlots obtaining married status through unplanned pregnancies are all displayed in the records. In short much of humankind throughout history seems to have been much more concerned with either having as much fun sexually as possible or reproducing in any way possible, rather than with some idealized goal of a monogamous relationship for life. I think trying to claim that more than a handful of past societies had lifetime monogamous relationships as a bedrock value is simply not supported by any evidence at hand.

I think we would do much better (as a church) concentrating on improving marriages – hence making the institution more desirable – than worrying about who else is having sex and getting tax breaks.

Proposition 8 did amend the California consitution. It was a referendum, yes — but a referendum to amend the state constitution. Once it was passed, the constitution of the state of California was amended.

Thanks for that info, as a result I looked up how the California Constitution can be amended. Amazingly it is by simple majority vote. Bizarre! I guess that is the functional definition of Constitutional mob rule. Glad I don’t live there. Based on that increased understanding (thanks!) please ignore the first two paragraphs of my post – they are irrelevant.

Marriage is a contract between consenting, competent adults in which certain rights and responsibilities are conferred upon the parties by the community — in this case the state — anything else you bring to the table is your own business.